Robinson v. Johnson

Filing 40

MEMORANDUM AND ORDER: Petitioner's "Motion for Judicial Notice of the Exhibits in Original 8:19 cv 43 Petition" (filing 39) is granted. Petitioner's "Motion for Leave of Court to Amend State Court Records and Request a He aring" (filing 38) is denied. On or before the close of business on November 12, 2020, counsel for Respondents shall submit a response to Petitioner's pending "Motion to Request the State Court Records Listed, Absent, Insufficient & Incapable of Weighing Defendants Facts" (filing 37) and provide any documents identified in Petitioner's motion which counsel for Respondents is readily able to provide in a supplemental designation. Respondents also shall have until November 12, 2020, to file and serve a reply brief in response to Petitioner's brief in opposition to Respondents' motion for summary judgment. Counsel for Respondents may incorporate the response to Petitioner's motion for addition al documents into her reply brief if she so chooses. The clerk of the court is directed to set a pro se case management deadline using the following text: November 12, 2020: check for Respondents' response to Petitioner's motion and reply brief. Ordered by Senior Judge Richard G. Kopf. (Copy mailed to pro se party) (ADB)

8:19-cv-00043-RGK-PRSE Doc # 40 Filed: 10/13/20 Page 1 of 6 - Page ID # 666

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
ERIC M. ROBINSON,
Petitioner,

8:19CV43

vs.
MEMORANDUM AND ORDER
BRAD JOHNSON, and DOUG
PETERSON, Attorney General;
Respondents.
This matter is before the court on Petitioner Eric M. Robinson’s
(“Robinson” or “Petitioner”) “Motion to Request the State Court Records Listed,
Absent, Insufficient & Incapable of Weighing Defendants Facts” (filing 37),
“Motion for Leave of Court to Amend State Court Records and Request a Hearing”
(filing 38), and “Motion for Judicial Notice of the Exhibits in Original 8:19 cv 43
Petition” (filing 39). Each motion shall be addressed in turn.
I. MOTION FOR ADDITIONAL STATE COURT RECORDS
Robinson’s first motion (filing 37) asserts that the Respondents’ Designation
of State Court Records in Support of Motion for Summary Judgment (filin g 34) is
inadequate and requests the following additional records:
1.) The June 12, 2017 CR16-224 amended information;
2.) The June 13, 2017 dismissal of CRl7-6309;
3.) The June 23, 2017 CR16-224 motion for new trial, discovery of new
evidence and to withdraw plea;
4.) “The CRl7-5960 false conflict and court records that were offered up as new
evidence discovery on 7-10-17, that continued CR16-224’s sentencing till 7-

8:19-cv-00043-RGK-PRSE Doc # 40 Filed: 10/13/20 Page 2 of 6 - Page ID # 667

14-17 for Judge Otte to adduce the new evidence discoveries and was
overruled on 7-14-17 secured for appeal”;
5.) The July 6, 2017 motion to subpoena additional information as well as
additional supplemental information for the motion for n ew an d effective
assistance of counsel;
6.) The bill of exceptions for the July 10, 2017 and July 14, 2017 hearings
CR16-224;
7.) Both of the handwritten July 10, 2017 motions for new and effective counsel
“that introduce the CRl7-5960 false conflict . . .”;
8.) The handwritten July 21, 2017 CR16-224 motion for the discovery of n ew
evidence, new trial and to withdraw my plea in regards to “Judge Otte[’]s 612-17 legal advice”;
9.) “The CR16-224, 7-27-17 motion to dismiss on the grounds that Ju dge Ot te
can not [sic] give me leagal [sic] advice and then convict me after I take h is
advice”;
10.) “The 8-9-17 CR16-224 motion for replacement counsel FOR APPEAL due
to a conflict of interest that identifies the true nature of appeal for ineffective
assistance of counsel . . .”;
11.) The August 9, 2017 poverty affidavit;
12.) The August 9, 2017 Bill of Exceptions; and
13.) The August 10, 2017 CR16-224 order appointing Brad Sipp t o t he CR16224 appeal.
(Filing 37 at CM/ECF pp. 2–3.)
The documents identified in numbers 1 and 13 are already contained wit hin
the records of this case, and the court will take judicial notice of them. (See Filin g
34-4 at CM/ECF pp. 6–7; Filing 2 at CM/ECF p. 37.) With respect to the
remaining records requested, the court will direct Respondents t o file a respon se

2

8:19-cv-00043-RGK-PRSE Doc # 40 Filed: 10/13/20 Page 3 of 6 - Page ID # 668

and provide any documents identified in Robinson’s motion (filing 37) which
counsel for Respondents is readily able to provide in a supplemental designation. 1
II. MOTION TO AMEND STATE COURT RECORDS
AND FOR HEARING
In his second motion, Robinson requests the court’s leave to submit
additional state court records into the record as well as a hearing at which
Robinson may offer these records and “address any other matters in concerns with
granting [him] the relief [he has] petitioned for.” (Filing 38.) Specifically,
Robinson asks to submit the following records:
1.)THE Cl18-462 BILL EXCEPTIONS FROM THE 4-12-18 OSC
HEARING THAT WILL PROVIDE ALL OF THE FRAUDULENT
IDENTIFYING FACTORS OF THE 4-19-18 CI18-462 DISMISSAL
AS WELL AS WILL PROVIDE THAT I ANNOUNCED TO THE
RECORD THE SABOTAGED MATTERS OF A-17-850, UPON
THE DEFENDANTS (the attorney generals office by Ryan Swaroff)
REFERENCE OF SAID APPEALS AS BEING REASON TO
SUPPORT DISMISSAL.
2.)THE CR18-1107 BILL OF EXCEPTIONS from the 1-7-19 an d 618-19 competency matter for reasons that are relevant to (a) Because
of the “disabilities or burdens [ which] may flow from ” pet itioner's
conviction, he has “a substantial stake in the judgment of con viction
which survives the satisfaction of the sentence imposed on him.”
Fiswick v. United States, 329 U.S. 211, 329 U.S. 222 (1946). Pp. 391
U.S. 237-238.
(Id. (emphasis in original).)

1

The court notes that it was able to view the documents identified in numbers 3, 5,
and 7 through 11 via the Nebraska Judicial Branch’s online court records website,
JUSTICE. See https://www.nebraska.gov/justice/case.cgi.

3

8:19-cv-00043-RGK-PRSE Doc # 40 Filed: 10/13/20 Page 4 of 6 - Page ID # 669

Robinson’s motion to submit these additional records is governed by Ru le 7
of the Rules Governing Section 2254 Cases in the United States District Courts.
Rule 7 permits the court to direct the parties to expand t he record by su bmitting
additional materials relating to the petition. However, this power is permissive an d
granted or denied at the court’s discretion.
Here, Respondents have filed a motion for summary judgment asserting that
all of Robinson’s habeas claims are procedurally defaulted. The court has carefully
reviewed Robinson’s motion and his brief in opposition to Respondents’ summary
judgment motion (filing 36) which Robinson contends “provide[s] all of the
relevant facts why these state court records are important and necessary to identify
the attorney generals part in matters of the CR16-224 trial courts fraudulent
overflow that deprived [him] of an appeal in concerns with the t rue correction of
errors in A-17-850.” (Filing 38.) Contrary to Robinson’s assertion, the court fin ds
that Robinson has failed to demonstrate how the records he wishes to submit to the
court are relevant to any showing of exhaustion of his claims in one complete
round before the Nebraska appellate courts or of cause or preju dice t o overcome
any default. Both the records Robinson seeks to submit are from state district court
cases other than the state court conviction at issue in this habeas case. Moreover, to
the extent Robinson is claiming that he presented his federal habeas claim s in h is
state court habeas proceedings in CI18-462, Robinson has failed to sh ow h ow t he
bill of exceptions he seeks to submit is relevant to the qu estion of exh austion or
cause and prejudice, particularly when the records of this case already con tain t he
order to show cause, the state’s response, the order of dismissal, and Robinson’s
motion for reconsideration in CI18-462, of which the court will take judicial
notice. (See Filing 2 at CM/ECF pp. 91–97; Filing 27 at CM/ECF pp. 60–68.)
Accordingly, the court will deny Robinson’s motion for a h earin g an d h is
request to amend the two bills of exceptions to the record of this case.

4

8:19-cv-00043-RGK-PRSE Doc # 40 Filed: 10/13/20 Page 5 of 6 - Page ID # 670

III. MOTION FOR JUDICIAL NOTICE
Lastly, Robinson asks the court “to take judicial n otice of t h e exh ibits of
state court documents in the original petition of 8:19 cv 43 and said exhibits
subject matter that identifies their purpose, and an y other relevance t he federal
court might find.” (Filing 39.) Upon consideration, Robinson’s motion is gran t ed,
and the court will take judicial notice of the state court documents filed with
Robinson’s original habeas petition and will consider them to t he ext ent they are
relevant.
IT IS THEREFORE ORDERED that:
1.
Petitioner’s “Motion for Judicial Notice of t h e Exhibits in Original
8:19 cv 43 Petition” (filing 39) is granted.
2.
Petitioner’s “Motion for Leave of Court to Amend State Court
Records and Request a Hearing” (filing 38) is denied.
3.
On or before the close of business on November 12, 2020, counsel for
Respondents shall submit a response to Petitioner’s pending “Mot ion t o Request
the State Court Records Listed, Absent, Insufficient & Incapable of Weighing
Defendants Facts” (filing 37) and provide any documents identified in Petitioner’s
motion which counsel for Respondents is readily able to provide in a supplemental
designation.
4.
Respondents also shall have until November 12, 2020, to file and
serve a reply brief in response to Petitioner’s brief in opposition t o Respondents’
motion for summary judgment. Counsel for Respondents may incorporate the
response to Petitioner’s motion for additional documents into her reply brief if sh e
so chooses.

5

8:19-cv-00043-RGK-PRSE Doc # 40 Filed: 10/13/20 Page 6 of 6 - Page ID # 671

5.
The clerk of the court is directed to set a pro se case management
deadline using the following text: November 12, 2020: ch eck for Respon dents’
response to Petitioner’s motion and reply brief.
Dated this 13th day of October, 2020.
BY THE COURT:
Richard G. Kopf
Senior United States District Judge

6